RE: [dvd-discuss] Bunner wins DeCSS trade secret appeal

["Michael A Rolenz" <Michael.A.Rolenz(at)aero.org>]

Good perspective. THe win is on protecting source code as speech-which is 
a big one What I think is that the courts have not considered the 
implications of excluding object.  The court did recognize that object 
code does NOT convey as much as source code but then neither does 
disassembling a mechanical clock provide as much information on the clock 
as having a set of blueprints with precise measurements and assembly 
instruction. To promote progress, some form of protection for executable 
code is needed to prevent "piracy" (but has all that really hurt M$ or the 
MPAA or RIAA members?) but is copyright the correct means? I don't know 
but the implications of the exclusion start to get pretty interesting as 
the discussion on DVDs as software have been here. N.Wirth : "Algorithms + 
Data Structures = Programs" has been the approach for some time. It's been 
easy to separate the two. "Algorithms + Data structures + VB macros + 
microcode +.....+ h.o.t.s. = Programs"...it's blurred the distinction 
technically to the point that excluding object code has bizarre 
consequences (Windows eXtra Putrid has no copyright protection?)




Bryan Taylor <bryan_w_taylor@yahoo.com>
Sent by: owner-dvd-discuss@eon.law.harvard.edu
11/05/01 03:58 PM
Please respond to dvd-discuss

 
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        Subject:        RE: [dvd-discuss] Bunner wins DeCSS trade secret appeal



--- Michael A Rolenz <Michael.A.Rolenz@aero.org> wrote:
 
> <quote>
> If the source code were "compiled" to create object code, we would agree 

> that the resulting composition of zeroes and ones would not convey 
ideas. 
> (See generally Junger v. Daley, supra, 209 F.3d at pp. 482-483.) That 
the 
> source code is capable of such compilation, however, does not destroy 
the 
> expressive nature of the source code itself.
> </quote>
> 
> The court has drawn a line in the sand....a few inches from a 
cliff...but 
> a line in the sand nevertheless!

I think it's important to realize that the quotation above is really just 
dicta
as far as the legal status of object code is concerned -- that wasn't 
before
the court. As far as I know, it also wasn't before the court in Junger v.
Daley, so we have dicta citing dicta. Not good.

It was before Kaplan who called it a "continuum" from one to the other 
after
hearing extensive expert testimony on the speech content.

The true value of this quote is that it says that the capability of 
compilation
into an executable does not impair the exressiveness that qualifies source 
code
for speech protection. 



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